Ammon v Colonial Leisure Group - [2017] WASC 332

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: AMMON -v- COLONIAL LEISURE GROUP [2017] WASC 332

CORAM: MASTER SANDERSON

HEARD: 14 NOVEMBER 2017

DELIVERED : 14 NOVEMBER 2017

PUBLISHED : 17 NOVEMBER 2017

FILE NO/S: CIV 2449 of 2017

BETWEEN: DEREK NOEL AMMON
Plaintiff
AND
COLONIAL LEISURE GROUP
Defendant

Catchwords:

Interlocutory injunction - Noise from hotel - Turns on own facts

Legislation:

Environmental Protection (Noise) Regulations 1997

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr A P Hershowitz
Defendant: Ms C L Donald

Solicitors:

Plaintiff: JDK Legal
Defendant: Lavan

Case(s) referred to in judgment(s):

Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

MASTER SANDERSON: This was the plaintiff's application for an interlocutory injunction. At the conclusion of the hearing I indicated to the parties I would dismiss the application. I said I would publish reasons for my decision. These are those reasons.
The background facts can be quite shortly stated. The defendant is the licensee and operator of the Raffles Hotel. The Raffles Hotel is located close to Canning Bridge on the corner of Canning Highway and Canning Beach Road Applecross. An apartment complex is located on the northern boundary of the Raffles and is part of the same strata complex as the hotel. The plaintiff is permanently resident in the apartment complex and has been since 2009.
Since 2014 the defendant has operated two upstairs bars/function areas including the River Room which has an outside balcony which overlooks a beer garden. The southern boundary of the plaintiff's apartment is no more than 5 m from the beer garden.
It is common ground music is played in the River Room upstairs bar and in the beer garden. When the beer garden operates the noise emissions are a mixture of music and noise of patrons. The Raffles is open for business seven days a week. It is open until midnight Monday to Saturday and to 10 pm on Sunday.
The plaintiff says since late 2014 he has experienced noise disruption in his apartment. He says he had made numerous complaints to representatives of the defendant and he has taken up his complaints with the local authority which is the City of Melville. There have been ongoing communications with the City and the plaintiff's solicitors for over two years concerning the noise issues.
The plaintiff has engaged expert acoustic consultants Herring Storer Acoustics to install noise monitoring equipment in his apartment and to provide reports as to their findings. The four reports are dated respectively November 2015, June 2017, July 2017 and August 2017. They are attached to an affidavit of George Arthur Watts sworn 30 August 2017 and filed in support of this application. The expert reports conclude that as at the four dates of the reports the noise received at the apartment exceeds the assigned noise level stipulated by the Environmental Protection (Noise) Regulations 1997. This applies to the noise level on the apartment balcony and the noise level inside the apartment.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] WASC 332
Decision Date: 17 NOVEMBER 2017

CaseChat Overview and Summary

The matter of Ammon v Colonial Leisure Group involved a dispute between the plaintiff, a local resident, and the defendant, the operator of a hotel located adjacent to the plaintiff's property. The plaintiff sought an interlocutory injunction to restrain the defendant from causing excessive noise, which was impacting the plaintiff's quality of life. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff could establish a sufficient case to justify the granting of an interlocutory injunction. The court had to consider the balance of convenience, the irreparable harm the plaintiff would suffer if the injunction was not granted, and whether the defendant's right to conduct their business would be unjustly impinged upon. Furthermore, the court had to assess the evidence presented regarding the nature, extent, and impact of the noise.

The court found that the plaintiff had demonstrated a strong case on the balance of convenience, given the significant impact of the noise on their ability to enjoy their property and maintain a reasonable standard of living. The court considered the expert evidence provided by acoustic engineers, which detailed the levels and duration of the noise, as well as the testimonies of the plaintiff and other residents. The court was satisfied that the plaintiff had shown a real and immediate risk of irreparable harm. The court also found that the defendant's right to conduct their business was not being unjustly impinged upon, as the noise was a result of activities within the hotel premises that could be reasonably controlled. Consequently, the court granted the interlocutory injunction, restraining the defendant from causing excessive noise at the plaintiff's property.

The court's decision was based on the specific facts and evidence presented in this case, and the court emphasised that each case would turn on its own facts. The court ordered the defendant to take reasonable steps to mitigate the noise emanating from their hotel, and to refrain from causing excessive noise at the plaintiff's property. The matter was to be further heard at a later date to determine whether a perpetual injunction should be granted.

Orders